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Supreme Court addresses protective orders

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The Indiana Supreme Court released two opinions today regarding the service of protective orders to respondents.

In Richard Joslyn v State of Indiana, No. 49S04-1102-CR-85, the Supreme Court held that a “minor defect in the service of a protective order was cured by (Richard) Joslyn’s statements to police and his testimony at trial.” Because of this, the court affirmed Joslyn’s convictions of Class C felony stalking and four counts of Class A misdemeanor invasion of privacy, which were all based on violations of the protective order.

In Jeffrey Tharp v. State of Indiana, No. 49S02-1005-CR-256, the court reversed Jeffrey Tharp’s conviction of invasion of privacy. In that case, the court wrote that “proof of knowledge must be beyond a reasonable doubt. The evidence of oral notice in this case, however, is insufficient to sustain Tharp’s conviction.”

Joslyn claimed he was not properly served with his protective order that had been filed by Stephanie Livingston. A deputy with the Marion County Sheriff’s Department served Joslyn with a copy of the protective order by attaching it to a door at his home. However, under Indiana Trial Rule 4.1 (B), a copy of the order was also to be sent via first class mail. There was no indication this took place.

But at trial, the court admitted a recording and transcript of Joslyn's statement to police where he stated he knew there was a restraining order and that he found it at his residence, even if he was somewhat unclear regarding the date the order was received. The incidents in question, including a note left on the front porch of the home where Livingston was staying, four broken windows to Livingston’s friend’s vehicle, and Joslyn hiding in the crawl space where Livingston lived, took place after the protective order was served.

“We agree with the Court of Appeals that Joslyn’s admission of receipt is sufficient to sustain his convictions,” wrote Chief Justice Randall T. Shepard. “As the court noted, the purpose of the Indiana Civil Protection Order Act is to promote the protection and safety of all victims of domestic violence and prevent future incidents. It would run contrary to this purpose if we were to embrace Joslyn’s contention that a defendant does not violate the criminal code because of some defect in civil process even where the court had in fact issued a protective order and the defendant in fact knew it had done so.”

Chief Justice Shepard also addressed the importance of protective orders to prevent domestic violence in the Joslyn opinion.

“The declared legislative intent that these provisions in the Code be interpreted in a way that will ‘promote the: protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and [the] prevention of future domestic and family violence,’” he wrote. “Joslyn’s proposed rule that one who acknowledges actual receipt at his home but not an additional copy by mail commits no violation would have real world implications placing far too many Hoosiers at risk of becoming a domestic violence statistic.”

In Tharp, however, it was not as clear as to whether the respondent was aware of the protective order against him.

When officers pulled Tharp’s car over during a traffic stop Feb. 16, 2009, they found the woman who filed a protection order against him on Oct. 1, 2008, Lisa Pitzer, and her daughter, among the passengers in the vehicle.

When officers ran Tharp’s information through a computer records check, they learned about the protective order, as well as the existence of an active warrant for Tharp for operating a vehicle while intoxicated, and that his license was suspended.

On Feb. 18, 2009, Pitzer filed a request for dismissal of the protective order and the court granted her request the same day.

At trial, Tharp denied he was ever served with the order or that Pitzer ever told him about it, and he denied that he told the officers that he was aware of the order. A return of service for the order indicated the service attempt had failed because he had moved.

In her testimony, Pitzer said she had told Tharp about the order when they got back together, a few months after she filed the order in October 2008. She also testified that she told him prior to the February 2009 traffic stop, but that she also thought she had the order dismissed prior to that time.

“…was there substantial evidence of probative value from which a finder of fact could find beyond a reasonable doubt that Tharp knowingly violated a protective order? We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction. Put another way, the evidence is insufficient that Tharp received adequate notice of the protective order,” Chief Justice Shepard wrote.
 

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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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